Article by Judge Oakes in This Issue: "Developments in Environmental Law."

This month's issue of ELR contains an article by Judge James L. Oakes of the Second Circuit (3 ELR 50001). The article, Developments in Environmental Law, is based upon the Judge's introductory address at Environmental Law II, the third annual conference on environmental law sponsored by the American Law Institute and the Smithsonian Institution. This year the Environmental Law Institute cooperated with the sponsoring institutions in conducting the conference.

Judge Oakes' opinions in several environmental lawsuits will be remembered for their depth of concern that environmental factors were not receiving full consideration in federal agency decision-making. His dissent in Scenic Hudson II,¹ the latest decision in the precedent-setting Storm King litigation, laid bare what he viewed as major inadequacies in the Federal Power Commission's review of possible environmental effects caused by construction of the pumped storage power project at issue in the case. His opinion in Conservation Society of Southern Vermont v. Volpe,² in which he sat as a federal district judge, answered affirmatively his own question, "Will highway development be held up for one little hill and one beaver pond?" where the requirements of federal law had not been fully satisfied. Controversies such as those in Scenic Hudson II and Conservation Society of Southern Vermont have given Judge Oakes a special opportunity to observe and participate in the evolution of environmental law. We are treated in his article, not only to his insightful summary of current trends, but to his prognosis — and even sometimes his prescriptions — for the future of the field.

In his remarks Judge Oakes is understandably bothered by the effects which public interest litigation may have upon non-parties — the problem of collateral estoppel in "polycentric," policy-oriented lawsuits. He suggests that the class action might be one way to insure the inclusion of affected parties, but is unhappy with the constricting trend of cases in the wake of the Supreme Court's [3 ELR 10048] Snyder v. Harris,³ including his own circuit's Zahn v. International Paper.⁴ In Judge Oakes' opinion, environmental lawsuits should not be decided on such "narrow technical grounds," in view of the pressing problem of environmental preservation.

Judge Oakes appears to view the National Environmental Policy Act of 1969 as primarily a "procedural" statute, ensuring disclosure and consideration of environmental impacts, albeit a statute which nevertheless has had a very large impact upon federal decision-making. Yet NEPA's interpretation took a large leap forward almost literally while the Judge was speaking. In four important recent opinions, courts have now held that the merits of projects are directly reviewable under NEPA, usually under the arbitrary-and-capricious standard. Inside three months, the Eight and Fourth Circuits so held, the Eighth Circuit in Environmental Defense Fund v. Corps of Engineers (Gillham Dam),⁵ and in Environmental Defense Fund v. Froehlke (Cache River),⁶ the Fourth Circuit in Conservation Council of North Carolina v. Froehlke.⁷ These circuit decisions explicitly confirmed a dictum in Calvert Cliffs' suggesting limited review on the merits, and adopted without citation the point of view of the long overlooked but prescient district court decision in Akers v. Resor.⁸ Finally, such review is endorsed and taken a step further in the recent and quite important district court opinion in Sierra Club v. Froehlke (Trinity River-Wallisville Dam),⁹ also discussed in this month's Comments.

Widened review of agency action under NEPA does not, however, blunt the edge of a further telling criticism which Judge Oakes makes of the Act. He points out that NEPA puts the burden on development-oriented agencies to perform the trade-offs of economic and environmental values mandated by NEPA. The courts cannot change this congressional mandate and cannot review de novo decisions which agencies make. Apparently, Judge Oakes is incurably pessimistic that development-oriented agencies, "advocates for economic expansion," could properly discharge a dual mandate. He suggests that Congress may have to designate some other entity to balance and decide in lieu of the agencies, or that Congress may have to legislate basic reform of agency structures.

Judge Oakes' spirited, hopeful discussion of the doctrine of nuisance is, perhaps unexpectedly, one of the most important parts of his article. In an era of sweeping statutory reforms such as NEPA and the air and water legislation, common law nuisance would not appear to have very much to offer to environmental law. Yet as Judge Oakes points out, changes in a few traditional elements of the tort would enlarge the courts' ability to perform the equitable balancing judgments that must be performed for a wide range of environmental controversies. He suggests modifications in the special damage limitation, in historical holdovers from the evolution of the tort as protection for property-based interests, and in the statutory ofigins of practically all public nuisance liability. Tentative Draft No. 17 of the Restatement of Torts is the star to which reform would be hitched. "[The Draft] … may be to the law of nuisance what McPherson v. Buick has been to the law of products liability." To give specificity to the balancing judgment which courts would then be free to perform, Judge Oakes proposes a four-part scale of environmental problems in rank order of gravity, to be traded off against a second four-part scale of ranked economic priorities.

In conclusion, Judge Oakes praises the role of environmental litigation in helping highlight and solve environmental problems, but he cautions against too much emphasis on litigation as an exclusive solution. On the one hand, he foresaw early in his article the possibility that:

One may look back upon the Sixties and Seventies as an era of the law's developing its own internal self-sustaining institution meeting the social demand for law actively to subserve the public interest in environmental protection — creating in three steps (1) a public right, (2) persons (or objects) with standing to assert that right,and (3) provision of the means for paying the lawyers and technical experts who do the work to assert the right. Thus evolves democracy in our law-oriented society.

Assessing the role of the courts, he concluded that:

The environment has become a matter of public concern through the courts. This is as it should be. It has been the largest single positive factor, I suggest, in environmental preservation….

On the other hand, Judge Oakes warns that in the end litigation is "supplemental" only, that major policy judgments cannot be made by courts. In the absence of fair and effective agency decision-making, the courts have played a crucial role. But in Judge Oakes' opinion, the proper response may be to fashion new institutional responses, rather than to rely upon the courts to police existing ones.

One institutional response rejected by the Judge is the creation of an environmental court. This proposal, which is being studied by the Justice Department, will be commented upon in a subsequent issue of ELR. Judge Oakes' [3 ELR 10049] primary objections are that such a court could not be truly "specialized" because environmental problems have virtually no boundaries; would centralize problems best handled locally; would be subject to especially intense political pressures in the selection of judges; and would deprive generalist judges of the time-honored and valued process of equitable balancing.

The Judge's own conclusion speaks best for him:

In conclusion, then, let me say to the environmentalists present not to put all of your thinking, hopes or commitments into litigation. Lobbying and public education must be viewed as at least equally important, for legislation is now pending or planned for introduction which will affect environmental protection favorably or adversely, as the case may be. NEPA could be emasculated. On the other hand a national Sax-type bill could be adopted. Litigation, if you will, is one legal approach to solution to environmental problems, but one approach only.

1. 453 F.2d 463, 1 ELR 20496 (2d Cir. 1971), cert. denied, 407 U.S. 926, 2 ELR 20436 (1972).

2. 343 F. Supp. 761, 2 ELR 20270 (D. Vt. 1972).

3. 349 U.S. 332 (1969).

4. __ F.2d __, 2 ELR 20616 (2d Cir. 1972), cert. granted, 41 U.S.L.W. 3441 (Feb. 20, 1973).

5. 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972).

6. __ F.2d __, 3 ELR 20001 (8th Cir. 1972).

7. __ F.2d __, 3 ELR 20132 (4th Cir. 1973).

8. 339 F. Supp. 1375, 2 ELR 20221 (W.D. Tenn.), __ F. Supp. __, 3 ELR 20157 (W.D. Tenn. 1972).

9. __ F. Supp. __, 3 ELR 20248 (S.D. Tex. 1973).